Maloney waits for judge's decision Mat Maloney Son remains optimistic about father's release By Jessica La Plante News-Chronicle Matt Maloney of Green Bay has received more than his share of bad news during his 18 years. In 1998, he received word that his mother, Sandra Maloney, who was struggling with a divorce and depression at the time, had died in a house fire. In 1999, he watched a Brown County jury convict his father, John Maloney, of first-degree intentional homicide, arson and mutilation of a corpse in the death of his mother. And in 2000, he received word that his father's quest for a new trial was thwarted by an unfavorable Court of Appeals decision. But as John Maloney's future once again lies in limbo, Matt Maloney said for once in his life, he isn't dreading receiving more news about his father's case. When a Brown County judge decides in the next few weeks whether Maloney will get a new trial, Matt Maloney expects to see the tides turn in his father's favor. "I think the judge is going to make the right decision because of everything that's come out since the trial," Matt Maloney said. "It's taken a long time to get people on our side to prove what we've known all along, but we've come to the realization that he's going to get out sooner or later." Following his father's conviction in 1999, Matt Maloney launched a grassroots campaign to educate the media and public about what he feels was a wrongful conviction stemming from an unfair trial. He said in seeking swift justice, prosecutors, police and the media ended up sending an innocent man to prison for his wife's suicide attempt. Since launching the grassroots campaign, Matt Maloney said he feels public opinion has swayed in his father's favor. Now, he is just waiting to see whether the pending petition has convinced the court of the same. Debate draws to close On July 7, the last in a series of legal briefs were filed by prosecutors and defense attorneys in response to Maloney's request for a new trial. Now, the ex-Green Bay police officer's fate rests in the hands of a single man: Brown County Circuit Judge Peter Naze, who is expected to render a decision on the motion within the next few weeks. On March 20, Milwaukee attorney Lewis Wasserman filed a petition for a writ of habeas corpus, claiming Maloney's Sixth Amendment right to effective counsel was violated. The petition claims Maloney's former father-and-daughter defense team, Gerald Boyle and Bridget Boyle-Saxton, denied Maloney's right to receive effective counsel by failing to suppress misleading and prejudicial evidence. Wasserman's petition cites several more ways the Boyles allegedly failed their former client, including a claim that the Boyles carelessly cross-examined a hostile witness. At a court hearing held May 21, testimony focused on whether the Boyles did enough to protect their client from incriminating evidence Wasserman claims was obtained through prosecutorial misconduct. That question has become the focal point of several legal briefs filed in June and July. In the March petition, Wasserman claimed former special prosecutor Joseph Paulus violated the "no contact" rule that governs attorney-client relations by recruiting Maloney's then-girlfriend, Tracy Hellenbrand, to interrogate the defendant on the prosecution's behalf. He said both Paulus and police knew Maloney was represented by a defense attorney at the time. Wasserman said Paulus coerced Maloney's girlfriend into questioning the defendant in a wire-tapped room, thereby violating both the rules of professional lawyer conduct and state surveillance laws. On those two grounds, the Boyles should have moved for suppression of the videotapes, Wasserman said. The video tapes showed Maloney discussing his wife's death with Hellenbrand in a Las Vegas hotel room. Wasserman said testimony given by Boyle-Saxton at the May 21 hearing showed that the Boyles didn't do their homework before filing a suppression motion in 1998, which asked the court to exclude the tapes under the alternate theory that Hellenbrand was acting in a law enforcement capacity and should have mirandized Maloney. He said case law Boyle-Saxton cited at the hearing to challenge the "no contact" approach wasn't even part of the Maloney file at the time the Boyles conducted Maloney's defense. Prosecutors deny misconduct In a brief filed June 24, attorney Vince Biskupic, who took over Paulus' job as special prosecutor in the Maloney case, refuted the notion that an alleged breach of the "no contact" rule would have convinced a judge to suppress the tapes. He said the federal case law cited in Wasserman's brief had strikingly different facts from Maloney's case. Biskupic pointed out that the prosecutor in the federal case had more of a hands-on role in the investigative process than Paulus did in the Maloney file. To support that claim, he attached an affidavit signed by Paulus. In the document, Paulus denies playing an advisory role in the investigation, and said he never instructed Hellenbrand to interrogate Maloney. He said law enforcement officials called all the shots before charges were filed. Biskupic would not return phone calls to The News-Chronicle to discuss the contents of his brief. However, attorneys not associated with the Maloney case said prosecutors generally avoid taking a hands-on role in a criminal investigation. "A prosecutor's role in an investigation is very limited," said John Luetscher, Brown County's deputy district attorney. "We can't directly ask suspects questions, or we'd become witnesses." At most, police keep prosecutors apprised of a pending investigation by asking questions if they run into legal or ethical dilemmas, he said. Many outcomes possible Wasserman said the habeas corpus petition could produce several outcomes. On one hand, Naze could decide that the Boyles' choice of legal strategy had little negative impact on Maloney's case. Even if the judge does grant Maloney's request for a new trial, depending on which claim the relief is granted under, he may or may not suppress the Las Vegas tapes. "Oftentimes judges like to give something to both sides," Wasserman said. "There's a lot of intriguing and interesting possibilities, all of which I hope will come down in the next month," he continued, adding that the judge might say, 'Let's give Maloney a new trial, but give the state an opportunity to try to convict him with essentially the same evidence.'" In that case, Matt Maloney said he believes the very forces that helped bring about his father's conviction in 1999 - media coverage and publicity - would now work to his father's advantage. "During the trial, we didn't talk to the media ... so every story that came up was negative against my dad," Matt said. "After the trial, we were talking more and all the facts were coming out. I think people saw for themselves that there's someone in prison who shouldn't be there."